Thursday, November 10, 2016

I was just trying to help....

While I am sure we all appreciate a judge who is trying to help out clients, we have to draw the line somewhere. And here, that line is giving them a longer prison sentence in an effort to promote their reformation.That is the issue in Tidzump a published Tenth Circuit case that was decided this week. There, Ms. Tidzump asked for an 18 month sentence after being convicted of assault. She cited her need for treatment as a factor supporting the sentence recommendation. The Judge, knowing that she would need at least 24 months remaining on her prison sentence to get into the RDAP program, imposed a 31 months prison sentence. The sentence of 31 months was a below guideline sentence.

The Tenth Circuit reversed the conviction even under a plain error standard, because the "district court expressly lengthened the sentence for the purpose of promoting rehabilitation." The opinion cites heavily to Tapia v. United States, which held that under 18 U.S.C.§ 3582(a) "imprisonment is not an appropriate means of promoting correction and rehabilitation."The lessons to be learned here are that if you want a client to get RDAP, make sure the reasons to support such a sentence aren't about rehabilitation. Remember too that (as the Supreme Court explained in Tapia) the district court is never sentencing a client to RDAP, that decision is controlled by BOP ("The sentencing court may have had plans for Tapia's rehabilitation, but it lacked the power to implement them.).